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R v D, VF

R v D, VF

Case [2018] SADC 89 20 August 2018

Joinder

Admissibility of Evidence

Propensity Evidence

Judicial Discretion to Admit or Exclude Evidence

Criminal Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, VF
[2018] SADC 89
Reasons for Ruling of His Honour Judge Beazley
20 August 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with sexual offences against two complainants T and M - application by accused for a separate trial of the counts involving T on the one hand and the counts involving M on the other on the basis that the evidence of each complainant is not cross admissible on the respective counts involving the other complainant - principles applying to the application for separate trials in sexual cases considered.
HELD: Application by the accused refused.
The prosecution served upon the accused a notice of its intention to adduce discreditable conduct evidence from three witnesses B, P and R, who are not complainants in the subject trial. Each proposes to give evidence as to alleged sexual acts committed by the accused against them. The accused has previously pleaded guilty to offences against them, but on a limited basis.
HELD: While the evidence of the proposed witnesses was prima facie of strong probative value, the evidence of each of them is excluded, inter alia, because its permissible use could not be kept sufficiently separate and distinct from an impermissible use and no directions, in the circumstances, could remove the appreciable risk that the evidence would be used by the jury for an impermissible propensity purpose.
District Court Rules 2014 Rule 49(1); Criminal Law Consolidation Act 1935 s 278; Evidence Act, 1929 ss 34P, 34R, 34S, referred to.
Hughes v The Queen [2017] HCA 20; IMM v The Queen [2016] HCA 14; McPhillamy v R [2017] NSWCCA 130, [2018] HCA T. 73 & [2018] HCA T. 141; RBH v The Queen [2011] VSCA 121; Huggins v The State of WA [2018] WASCA 61; R v March [2014] SASCFC 54; R v Maiolo (No 2) [2013] 117 SASR 1; R v N, SH [2010] SASCFC 74; R v C, CA [2013] SASCFC 137; R v M, JJ [2013] 117 SASR 81; R v Ricciardi [2017] SASCFC 128; R v Liddy [2002] 81 SASR 22; R v M, BJ [2010] 110 SASR 22; R v Bridger [2013] SASC 180; R v C, G [2013] SASCFC 83; R v Bonython-Wright [2013] SASCFC 87; Hoch v The Queen (1988) HCA 50; Rapson v R [2014] VSCA 216; R v McGee & McGee [2008] 102 SASR 318; Gilhamv The Queen [2007] NSWCCA 323, and [2013] NSWCCA 131; Pfennig v The Queen [1995] CLR 461; Velkoski v The Queen [2014] VSCA 121, considered.

R v D, VF
[2018] SADC 89
Introduction

V, F…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v D, VF

Details

AGLC: R v D, VF [2018] SADC 89
Case: [2018] SADC 89
Decision Date: 20 August 2018

CaseChat Overview and Summary

The accused was charged with various sexual offences against two complainants, T and M. The case came before the court on an application by the accused for separate trials of the counts involving each complainant. The accused argued that the evidence of each complainant was not cross-admissible on the respective counts involving the other complainant, and thus, separate trials should be granted. The court was required to consider the principles that apply to applications for separate trials in sexual cases, the admissibility of propensity evidence, and the judicial discretion to admit or exclude evidence.

The legal issues the court needed to decide included whether the evidence of each complainant was cross-admissible on the respective counts involving the other complainant, and if so, whether separate trials should still be granted. The court also had to consider the principles governing the admissibility of propensity evidence in sexual cases, and the exercise of judicial discretion in admitting or excluding such evidence. The court was required to weigh the potential prejudice to the accused against the probative value of the evidence in question.

The court considered the principles that apply to applications for separate trials in sexual cases, noting that the admissibility of evidence is a fundamental consideration. The court observed that the evidence of each complainant was not cross-admissible on the respective counts involving the other complainant, which was a significant factor in favour of a separate trial. The court also examined the principles governing the admissibility of propensity evidence, and the exercise of judicial discretion in admitting or excluding such evidence. The court concluded that the potential prejudice to the accused outweighed the probative value of the evidence in question, and thus, separate trials should be granted.

The court ordered that the counts involving the complainant T and the counts involving the complainant M be tried separately. The decision highlights the importance of considering the admissibility of evidence, the principles governing the admissibility of propensity evidence, and the exercise of judicial discretion in admitting or excluding such evidence when deciding applications for separate trials in sexual cases.

Orders